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Himachal Pradesh High Court · body

1996 DIGILAW 180 (HP)

CORE HEALTH CARE LIMITED v. SECRETARY, HUMAN RIGHTS COMMISSION

1996-09-24

KAMLESH SHARMA, M.SRINIVASAN

body1996
JUDGMENT M. Srinivasan, C. J. —The petitioner prays for issue of a Mandamus directing respondents No. 2 and 3, namely, the Director Health Services and Administrator, Indus Hospital, Shimla to withdraw their respective orders both dated 24-4-1996 stopping the use of 5% Dextrose Injection I. P. Bottles, Batch Nos E-01-1224Tand E-01-2004 of the petitioner Company and for other reliefs. The matter arose because of the complaint made to the State Human Rights Commission on the basis of which the said Commission passed an order on 24 4-1996 requesting the Secretary (Health) of the State to take immediate action to see that all the stocks of that medicine in the State are seized and no more purchase of the same is done for use in any of the Hospitals in the State 2. The complaint before the Human Rights Commission was that the Quality Control Committee of the Indus Hospital, Shimla, noticed that five bottles of the medicine 5% Dextrose Injection supplied by the petitioner herein contained fungus. On receipt of such complaint, the Commission took into consideration the danger to public health and human life and issued the directions as aforesaid, to the Secretary (Health). It is not necessary to refer to the remaining part of the said order of the State Human Rights Commission. On the basis of the said order of the Commission, the Director Health Services, Himachal Pradesh, passed the following order : "Reported fungus in 5% Dextrose Injection I P. Bottles manufactured by M/s. Core Parentals Ltd. Gujarat under Batch No E-01-1224 and E-01-2004 manufactured in May 1994 and December 1994 respectively. Stop use of these batches of Drugs forthwith. Direct the Medical Superintendents and other Medical Officers of the Medical Institutions in District accordingly. Also direct Drugs Inspectors of your Districts to get the samples of these batches drawn and get them analyzed on priority basis and result communicated to this office immediately. Intimate stock position of this injection in the Stores, within fortnight." 3. It may be noted here that the order of the State Government was confined to two batches, namely, Batch Nos. E-01-1224 and E-01-2004. The order also directed the Drugs Inspectors to get the samples of those batches drawn and get them analyzed on priority basis and to communicate the result of the analysis to the office of the Director, Health Services. E-01-1224 and E-01-2004. The order also directed the Drugs Inspectors to get the samples of those batches drawn and get them analyzed on priority basis and to communicate the result of the analysis to the office of the Director, Health Services. The order as such does not deal with any other medicine supplied by the petitioner company or any other batch of the same medicine to be supplied by the petitioner company. 4. The contention of the petitioner is that the Human Rights Commission has no power whatever to pass an interim order as has been done in this case and the Director, Health Services, should not have passed an order based on the orders of the Human Rights Commission. Before dealing with the said contention it is necessary to make a reference to the reply filed by the Director, Health Services, in which it is stated that he also took part in the proceedings before the State Human Rights Commission. It is further stated that the State Drugs Control Administration moved into action and as such the samples of drugs bearing Batch No E-0l-1224 and E-01-2004 were drawn by the Drugs Inspectors in consonance with the provisions of the Drugs and Cosmetics Act, 1940 and the rules framed thereunder and sent to the Government Analyst for analysis. The analysis reports in respect of these batches of drugs had been received declaring the same to be not of standard quality for the reasons : “(i) The sample contains lot of white fibrous mass which appears to be fungi in plastic container. (ii) The sample does not pass the test of sterility." 5. In so far as the Human Rights Commission is concerned, it has filed a reply in which it is stated that the matter is still under enquiry and the Commission proposes to issue notice to the petitioner Company in compliance with section 16 of the Act before it submits final report to the Government. The proceedings dated 24-4-1996 is only by way of an interim measure to avert immediate damage to human life. The Human Rights Commission has explained the circumstances under which it felt obliged to pass the order dated 24-4-1996 requesting the Secretary (Health) to seize the stock and stop user of the said medicine. 6. The proceedings dated 24-4-1996 is only by way of an interim measure to avert immediate damage to human life. The Human Rights Commission has explained the circumstances under which it felt obliged to pass the order dated 24-4-1996 requesting the Secretary (Health) to seize the stock and stop user of the said medicine. 6. The first contention raised on behalf of the petitioner is that there was no notice at all to the petitioner at any stage before the impugned order was passed and the principles of natural justice have been violated. With regard to this contention, we have already referred to the statement contained in the reply filed on behalf of the State Human Rights Commission that they intend to give notice to the petitioner Company and enquiry is still pending before them. In our view, principles of natural justice have not been violated in any manner as the matter involved immediate danger to human life. The steps taken by passing the interim order before giving notice to the petitioner company were in accordance with law. 7. The second contention urged by the learned Counsel for the petitioner is that the Commission has no power whatever to pass an interim order in any matter which comes before it. The only power of the Commission is to make a recommendation to the concerned Government or authority for the grant of such relief as are warranted Our attention is drawn to sections 14, 15,16, 17 and 18 of the Protection of Human Rights Act, 1993. Section 17 contains the provisions for inquiry into complaints by the Commission. Section 18 sets out the steps to be taken by the Commission after such inquiry. Sub-section (3) of section 18 provides for recommendation by the Commission to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family which the Commission may consider necessary. Section 16 of the Act provides : "If, at any stage of the inquiry, the Commission— (a) consider it necessary to inquire into the conduct of any person ; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence.” 8. It is, therefore, contended that the provisions of the Act do not empower the Commission to pass interim order before the conclusion of the enquiry. In support of this contention, reference is also made to Morgan Stanley Mutual Fund v, Kartick Dass, (1994) 4 SCC 225. In that case, the Supreme Court considered the provisions of the Consumer Protection Act, 1986. Referring to the provisions of section 14 of the said Act, the Supreme Court held that there was no power with the Consumer forum under the Act to grant interim relief or even the ad interim relief and that only final relief could be granted by the forum. 9. The provisions of section 14 of the said Act of course, do not contain any reference therein to the powers of the said forum to grant interim relief. Section 13 (4) of the Consumer Protection Act provides that the District forum, for the purposes of chat section, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure while dealing with a suit only in respect of the matters set out in that subsection Hence the ruling of the Supreme Court under the provisions of the Consumer Protection Act will not apply in the present case. In so far as the Protection of Human Rights Act is concerned, section 13 confers the powers on the Commission relating to inquiries. Section 13 (1) reads : “13. Powers relating to inquiries.—(I) The Commission shall, while inquiring into complaints under this Act, have all the powers of a Civil Co in trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters......” 10. The section can be read in two parts. The first part of the section confers all the powers of the Civil Court trying a civil suit under the Code of Civil Procedure on the Commission. The second part sets out that in particular matters set out therein, the Commission shall have the same powers. Thus, the language of the section is entirely different from the language of section 13 (4) of the Consumer Protection Act. The first part of the section is wide enough to confer powers to pass interim orders on the Commission. The second part sets out that in particular matters set out therein, the Commission shall have the same powers. Thus, the language of the section is entirely different from the language of section 13 (4) of the Consumer Protection Act. The first part of the section is wide enough to confer powers to pass interim orders on the Commission. The Civil Court has got power to pass interim orders under Order 39 and Order 40 of the Code of Civil Procedure to grant injunction or to appoint receiver. The same power is also conferred by sub-section 13 (5) of the Act on the Human Rights Commission. Hence the contention that the Human Rights Commission has no power to pass an interim order cannot be accepted. 11. However, in this case, it is not an order passed by the Human Rights Commission which has affected the petitioner herein. The matter arose because of the complaint made to the Commission on the basis of which the Commission passed an order on 24-4-1996 requesting the Secretary (Health) to take appropriate action in the matter. It is on that request the Director, Health Services, passed the order dated 24-4-1996 which is found in Annexure B. It is that order which affects the petitioners right and which is challenged in this writ petition. We are not really concerned whether the Human Rights Commission has got powers to pass an interim order affecting persons or individuals. In this case, there is no direct order passed by the Human Rights Commission which affects the rights of the petitioner herein. 12. Hence we reject both the contentions urged by the petitioner in this case. However, it is pointed out that the defect, if at all, is only in the two batches of medicine, namely, 5% injection Dextrose, and the bar imposed by the order dated 24-4-1996 passed by the Director, Health Services, should not be made applicable to other medicines or other batches of the same medicine. There is no necessity for such a contention as we find that the order passed by the Director, Health Services, is confined only to two batches of 5% injection Dextrose I. P. Bottles under Batch Nos. E-01-1224 and E-01-2004. That order does not prevent the petitioner from supplying other medicines or other batches of the same medicine to the hospitals. There is no necessity for such a contention as we find that the order passed by the Director, Health Services, is confined only to two batches of 5% injection Dextrose I. P. Bottles under Batch Nos. E-01-1224 and E-01-2004. That order does not prevent the petitioner from supplying other medicines or other batches of the same medicine to the hospitals. It is open in every case for the concerned authority to analyze the medicines supplied to them and adopt the usual procedure as had been adopted in the case of the other medicines purchased from the petitioner to find out whether those medicines are free from any defect If the medicines are free from defects, it is open to them to accept the medicines. That right of the petitioner has not in any manner been affected. 13. With the above observations this writ petition is dismissed. It is needless to say that it is open to the petitioner to appear before the Human Rights Commission on receipt of the notice and take part in the inquiry proposed to be held by them. C. M. P. No. 2020 of 1996 : 14. In view of the dismissal of the writ petition, this C. M. P. no longer survives and it is dismissed. It is seen that by interim order dated 5-6-1996, the authorities were prevented from passing final orders on the tenders submitted by the various firms including the petitioner company. Now that the writ petition is disposed of, it is open to the authorities to finalize the acceptance of tender and take further action thereon.